Citation Nr: 0207247
Decision Date: 07/02/02 Archive Date: 07/10/02
DOCKET NO. 99-15 977 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for hearing loss of the
right ear.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESS AT HEARING ON APPEAL
Appellant
INTRODUCTION
The veteran served on active duty from July 1980 to August
1985.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a January 1999 rating decision of the
Waco, Texas, Department of Veterans Affairs (VA) Regional
Office (RO). In that decision, the RO continued the
30 percent evaluation for the keloid scar of the left ear and
denied entitlement to service connection for residuals of a
head injury, migraine headaches, bilateral hearing loss, and
tinnitus.
The veteran has continued the appeal only as to the claims of
entitlement to service connection for bilateral hearing loss
and tinnitus, and entitlement to an increased evaluation for
keloid scar of the left ear. Thus, the issue of entitlement
to service connection for residuals of a head injury, to
include migraine headaches, is not considered part of the
current appellate review. See Hearing Transcript, (T.) pages
2, 4.
In a November 2000 decision, the Board granted service
connection for tinnitus as well as a separate 10 percent
rating based on tenderness of the keloid scar of the left
ear. The Board otherwise denied an evaluation in excess of
30 percent based on disfigurement of the keloid scar of the
left ear and remanded the issue of service connection for
bilateral hearing loss.
In a rating decision dated in March 2002, service connection
was granted for left ear hearing loss; service connection for
right ear hearing loss remained denied. The veteran was
notified of this decision in a March 2002 letter from the RO.
The veteran has not expressed disagreement with the "down-
stream" issues of either the effective date or disability
evaluation assigned to his left ear hearing loss; therefore,
such matter is not before the Board. See Grantham v. Brown,
114 F.3d 1156 (Fed. Cir. 1997);
Barrera v. Gober, 122 F.3d 1030 (Fed.Cir., 1997); see also
Holland v. Gober, 10 Vet. App. 433 (1997) (per curiam).
Accordingly, the only pending issue is that listed on the
title page of this decision.
FINDINGS OF FACT
1. All reasonable development necessary for the disposition
of the instant case has been completed.
2. There is no medical evidence that the veteran currently
has a hearing loss disability of the right ear pursuant to VA
regulations.
CONCLUSION OF LAW
Right ear hearing loss was not incurred in or aggravated by
service, nor may sensorineural hearing loss of the right ear
be presumed to have been so incurred. 38 U.S.C.A. §§ 1131,
5107 (West 1991 & Supp. 2001); Pub. L. No. 106-475, 114 Stat.
2096 (2000) (codified at 38 U.S.C.A. §§ 5100-5103A, 5106,
5107 (West Supp. 2001); 38 C.F.R. §§ 3.102, 3.303, 3.385
(2001); 66 Fed. Reg. 45,630-632 (Aug. 29, 2001) (to be
codified as amended at 38 C.F.R. §§ 3.102, 3.159).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
An audiometric examination in September 1979 at the time of
the veteran's enlistment examination was as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
5
5
15
25
An audiometric examination in April 1981 was as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
5
5
5
10
An audiometric examination in July 1983 was as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
20
0
10
10
10
Service medical records dated in August 1984 show that
hearing, by audiogram, was within normal limits, bilaterally.
No hearing profile was issued.
At the time of the veteran's medical board evaluation prior
to service separation in April 1985, audiometric examination
was as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
0
0
5
5
15
Private audiometric testing dated in July 1998 shows that the
veteran was tested for hearing loss.
On an examination for scars in September 1998, the veteran
stated that he had bilateral hearing loss as a result of a
service injury. Though no audiometric testing was conducted
during that examination, the pertinent diagnoses included
hearing loss, secondary to injury to the left ear. An
audiometric examination on VA special examination in
September 1998 was as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
10
10
10
15
Speech recognition was 96 percent on the right. The examiner
stated that hearing was within normal limits for adjudication
purposes.
An October 1999 private audiological evaluation establishes
that there was a clinical history of right ear hearing loss.
The examiner stated the veteran's hearing in the right ear
was within normal limits.
The veteran testified at a videoconference hearing in May
2000. The veteran stated that he did complain of hearing
loss while he was on active duty. T. 6. He indicated that
he had a definite hearing loss on the left, but that the
right ear was "okay." T. 7. He recalled that he was
exposed to extremely loud noise in his service assignment as
a communications specialist. That position required him to
actually be inside of a 155 Howitzer when they were firing
live rounds. He wore earplugs as protection during service.
He served in field artillery for about 3 1/2 years. T. 8.
In the May 2000 private medical record, the examiner stated
the veteran had mild conductive hearing loss which was due to
the motor vehicle accident in service.
An audiometric examination on VA examination in January 2002
was as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
15
15
15
20
Speech recognition was 94 percent on the right. The examiner
stated that hearing was within normal limits for adjudication
purposes.
Preliminary Matters: Veterans Claims Assistance Act
The Board notes at the outset that there has been a
significant change in the law during the pendency of this
appeal. On November 9, 2000, the Veterans Claims Assistance
Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096
(2000) (codified as amended at 38 U.S.C.A. § 5100 et seq.
(West Supp. 2001)) became law. VA has also revised the
provisions of 38 C.F.R. § 3.159 effective November 9, 2000,
in view of the new statutory changes. See 66 Fed. Reg.
45,620-45,632 (August 29, 2001). This law redefined the
obligations of VA with respect to the duty to assist and
included an enhanced duty to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits. This law also eliminated the concept of a
well-grounded claim and superseded the decision of the United
States Court of Appeals for Veterans Claims (Court) in Morton
v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton
v. Gober, 14 Vet. App. 174 (2000) (per curiam order), which
had held that VA could not assist in the development of a
claim that was not well grounded. This change in the law is
applicable to all claims filed on or after the date of
enactment of the VCAA, or filed before the date of enactment
and not yet final as of that date. VCAA, § 7(a), 114 Stat.
at 2099-2100; see also Karnas v. Derwinski, 1 Vet. App. 308
(1991).
In addition, VA has recently published new regulations, which
were created for the purpose of implementing many of the
provisions of the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29,
2001) (to be codified as amended at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, and 3.326(a)). The intended effect of these
regulations is to establish clear guidelines consistent with
the intent of Congress regarding the timing and scope of
assistance VA will provide a claimant who files a
substantially complete application for VA benefits. These
new regulations also provide guidelines regarding VA's duties
to notify claimants of necessary information or evidence and
to assist claimants in obtaining evidence. These new
regulations, which in pertinent part are effective as of the
date of enactment of the VCAA, interpret and implement the
mandates of the statute, "and do not provide any rights
other than those provided by the VCAA." 66 Fed. Reg.
45,629. For the reasons discussed below, the Board finds
that the requirements of the VCAA and the implementing
regulations have been satisfied in this matter.
Changes potentially relevant to the veteran's appeal include
the establishment of specific procedures for advising the
claimant and his or her representative of information
required to substantiate a claim, a broader VA obligation to
obtain relevant records and advise claimants of the status of
those efforts, and an enhanced requirement to provide a VA
medical examination or obtain a medical opinion in cases
where such a procedure is necessary to make a decision on a
claim.
The Board finds that the requirements of the VCAA have
clearly been satisfied in this matter.
The Board notes that the veteran was advised, by virtue of
detailed statements of the case (SOC) and supplemental
statements of the case (SSOC), issued during the pendency of
this appeal, of the pertinent law and facts that were set
forth in a fashion that clearly and adequately informed the
claimant of the criteria for establishing service connection
for the claimed disability. The Board notes, in addition,
that a substantial body of lay and medical evidence was
developed with respect to the veteran's claim, and the SOCs
and SSOCs issued by the RO clarified what evidence would be
required to establish service connection for hearing loss.
The RO notified the veteran specifically about the VCAA in
May and November 2001 letters. The veteran's representative
responded to the RO's communications with additional evidence
and/or argument, thus curing (or rendering harmless) any
possible previous omissions. See Bernard v. Brown, 4 Vet.
App. 384, 393-94 (1993), infra; VAOPGCPREC 16-92 (57 Fed.
Reg. 49,747 (1992)).
Accordingly, the Board believes that VA has no outstanding
duty to inform the veteran or his representative that any
additional information or evidence is needed to substantiate
this claim. VCAA § 3(a), 114 Stat. 2096, 2096-97 (now
codified as amended at 38 U.S.C. § 5103).
Likewise, it appears that all obtainable evidence identified
by the appellant relative to this claim has been obtained and
associated with the claims folder, and that he has not
identified any other pertinent evidence, not already of
record, which would need to be obtained for an equitable
disposition of this appeal.
The VCAA also requires VA to provide a medical examination
when such an examination is necessary to make a decision on
the claim. See Pub. L. No. 106-475, § 3(a) (to be codified
at 38 U.S.C. 5103A(d)). The VA examinations afforded to the
veteran, including in 1998 and 2002, that are described in
detail above satisfied this obligation. The veteran's
private medical records have also been submitted. He also
provided testimony at a hearing. The Board is satisfied that
all relevant facts have been properly and sufficiently
developed, and that the veteran will not be prejudiced by
proceeding to a decision on the basis of the evidence
currently of record regarding this instant claim.
Accordingly, VA has satisfied its duty to assist the veteran
in apprising him as to the evidence needed, and in obtaining
evidence pertaining to this claim, under both former law and
the new VCAA. The Board, therefore, finds that no useful
purpose would be served in remanding this matter for yet more
development. Such a remand would result in unnecessarily
imposing additional burdens on VA, with no additional benefit
flowing to the appellant. The Court has held that such
remands are to be avoided. See Winters v. West, 12 Vet. App.
203 (1999) (en banc), vacated on other grounds sub nom.
Winters v. Gober, 219 F.3d 1375 (Fed. Cir. 2000). In fact,
the Court recently stated, "The VCAA is a reason to remand
many, many claims, but it is not an excuse to remand all
claims." Livesay v. Principi, 15 Vet. App. 165, 178 (2001).
It is the Board's responsibility to evaluate the entire
record on appeal. See 38 U.S.C.A. § 7104(a) (West 1991 &
Supp. 2001). When there is an approximate balance in the
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (2001);
VCAA § 4, 114 Stat. 2096, 2098-99 (codified as amended at
38 U.S.C. § 5107(b)).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
held that a veteran need only demonstrate that there is an
"approximate balance of positive and negative evidence" in
order to prevail. The Court has also stated, "It is clear
that to deny a claim on its merits, the evidence must
preponderate against the claim." Alemany v. Brown, 9 Vet.
App. 518, 519 (1996), citing Gilbert.
Legal Criteria
Service connection may be granted for a disability resulting
from personal injury suffered or disease contracted in line
of duty or for aggravation of preexisting injury suffered or
disease contracted in line of duty. 38 U.S.C.A. § 1131 (West
1991 & Supp. 2001); 38 C.F.R. § 3.303 (2001). Regulations
provide that service connection may be granted for any
disease diagnosed after discharge when all of the evidence
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d)
(2001).
In the alternative, the chronicity provisions of 38 C.F.R. §
3.303(b) are applicable to an award of service connection
where the evidence, regardless of its date, shows that a
veteran had a chronic condition in service, or during an
applicable presumption period, and still has such condition.
Such evidence must be medical unless it relates to a
condition as to which, under the Court's case law, lay
observation is competent. If the chronicity provision is not
applicable, a claim may still be granted service connection
on the basis of 38 C.F.R. § 3.303(b) if the condition is
observed during service or during any applicable presumption
period, if continuity is demonstrated thereafter, and if
competent evidence relates the present condition to the
symptomatology. See Savage v. Gober, 10 Vet. App. 488, 498
(1997).
In addition to the general rules of service connection cited
above, the Board notes that service connection for
sensorineural hearing loss may be presumed if it became
manifest to a degree of 10 percent disabling during the
veteran's first year after separation from service. 38
U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307,
3.309.
For the purpose of applying the laws administered by VA,
impaired hearing is considered a disability when the auditory
threshold in any of the frequencies 500, 1,000, 2,000, 3,000,
or 4,000 Hertz is 40 decibels or greater; or when the
auditory threshold for at least three of the frequencies 500,
1,000, 2,000, 3,000, or 4,000 Hertz is 26 decibels or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent. 38 C.F.R. § 3.385.
Further, the Court has indicated that the threshold for
normal hearing is between 0 and 20 decibels and that higher
thresholds show some degree of hearing loss. Hensley v.
Brown, 5 Vet. App. 155, 157 (1993). When audiometric test
results at a veteran's separation from service do not meet
the regulatory requirements for establishing a "disability"
at that time, he may nevertheless establish service
connection for a current hearing disability by submitting
evidence that the current disability is causally related to
service. Hensley, 5 Vet. App. at 160.
Analysis
In the instant case, the Board finds that the preponderance
of the evidence is against the veteran's claim of service
connection for hearing loss of the right ear.
In this, and in other cases, only independent medical
evidence may be considered to support Board findings. The
Board is not free to substitute its own judgment for that of
such an expert. See Colvin v. Derwinski, 1 Vet. App. 171,
175 (1991). Nothing on file shows that the veteran has the
requisite knowledge, skill, experience, training, or
education to render a medical opinion. See Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992). Consequently, his
contentions to the extent that he has a right ear hearing
loss disability cannot constitute competent medical evidence.
As an initial matter, the Board notes that there is no
medical evidence that the veteran has ever had a hearing loss
of the right ear either during service or within his first
post-service year that meets the requirements of 38 C.F.R.
§ 3.385. Thus, he is not entitled to a grant of service
connection for this disability on a presumptive basis.
38 C.F.R. §§ 3.307, 3.309.
The Board further notes it does not appear that there is any
competent medical evidence on file which actually shows
current diagnoses of a hearing loss disability of the right
ear pursuant to 38 C.F.R. § 3.385. The Board recognizes that
a VA scar examiner in September 1998 and a private medical
report in May 2000 indicate that the veteran has right ear
hearing loss. The private doctor then related such loss to a
service injury. However, the private reports/conclusions and
the VA scar examiner's diagnosis are outweighed by the VA
specialist examinations which contain audiogram test results
that conform to the regulatory requirements. See 38 C.F.R.
§ 4.85(a) (2001) (an examination for hearing impairment for
VA purposes must be conducted by a state-licensed audiologist
and must include a controlled speech discrimination test....).
When the appropriate audiograms are obtained, a right hearing
loss disability is not shown. 38 C.F.R. § 3.385.
Primarily, for a grant of service connection, the claimant
must currently have a disability. See, e.g., Gilpin v. West,
155 F.3d 1353 (Fed. Cir. 1998); Degmetich v. Brown, 104 F.3d
1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223,
225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144
(1992). The Board notes that the VA examinations, which are
of greatest probative value, in 1998 and 2002 did not show a
right ear hearing loss disability per the provisions of
38 C.F.R. § 3.385.
In light of the greater weight being placed on the VA
specialist examination reports which include audiograms and
examiners' opinions that right ear hearing is normal for
adjudicative purposes, the Board finds that the preponderance
of the evidence is against the claim for service connection.
38 U.S.C.A. §§ 1131, 5107 (West 1991 & Supp. 2001); 38
C.F.R. §§ 3.102, 3.303, 3.385 (2001);
ORDER
Service connection for hearing loss of the right ear is
denied.
M. Sabulsky
Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.